This article is part of a symposium honoring one of my wonderful mentors: Einer Elhauge. It focuses on human enhancement. With advances in reproductive technologies, genetic screening, and concomitant calls for regulation of these things in America the time for discussing these issues has never been better.

Part I offers a reconstructive taxonomy as to different kinds of enhancements, including incorporating one distinction (as to absolute and positional goods and positive and negative externalities) that has been the focus of Elhauge’s own thinking. That said, one leitmotif of this Part is that “enhancement” as a category may not be particularly useful, especially if we accept there are not morally relevant differences in the biological vs. non-biological and treatment vs. enhancement distinctions, such that something like tutoring falls into the category of “enhancement.”

Part II offers a taxonomy of legal/regulatory interventions.

Part III attempts to sketch and interrogate the major arguments offered against human enhancement, including by mapping these arguments onto the taxonomies developed in Parts I and II and showing to which kinds of enhancements they apply and what kinds of legal/regulatory interventions can accommodate some of the concerns they raise.

Finally, Part IV focuses on a question that has received surprisingly scant attention: why enhancement is sought. I will argue that one key reason offered for enhancement, to improve the life of the enhanced in the case of enhancement through reproduction, cannot be sustained for reasons that mirror points I have made elsewhere on the opposite issue, the justification for preventing parents from reproducing in ways that “harm” their offspring.

What kinds of harm among those that tortfeasors inflict are worthy of compensation? Which forms of self-incriminating evidence are privileged against government compulsion? What sorts of facts constitute a criminal defendant’s intent? Existing doctrine pins the answer to all of these questions on whether the injury, facts, or evidence at stake are "mental" or "physical." The assumption that operations of the mind are meaningfully distinct from those of the body animates fundamental rules in our law.

A tort victim cannot recover for mental harm on its own because the law presumes that he is able to unfeel any suffering arising from his mind, by contrast to his bodily injuries over which he exercises no control. The Fifth Amendment forbids the government from forcing a suspect to reveal self-incriminating thoughts as a purportedly more egregious form of compulsion than is compelling no less incriminating evidence that comes from his body. Criminal law treats intentionality as a function of a defendant’s thoughts altogether separate from the bodily movements that they drive into action.

This Essay critically examines the entrenchment of mind-body dualism in the Supreme Court doctrines of harm, compulsion, and intentionality. It uses novel insights from neuroscience, psychology, and psychiatry to expose dualism as empirically flawed and conceptually bankrupt. We demonstrate how the fiction of dualism distorts the law and why the most plausible reasons for dualism’s persistence cannot save it. We introduce an integrationist model of human action and experience that spells out the conditions under which to uproot dualism’s pernicious influence within our legal system.

Framing and metaphors play an important role in defining social problems, and as they carry with them implicit natural ‘solutions’, they can have a significant impact on public policy. This paper analyses how frames and metaphors feature in the academic human enhancement literature, in particular in relation to the therapy/enhancement distinction. A case study analysis of 25 academic papers on the use of psychopharmaceuticals for non-therapeutic purposes highlights the implicit associations and assumptions about human enhancement in the academic debate.

Four frames, with different sets of metaphors, can be distinguished: different territory (in which therapy and enhancement are different fields, separated by a thin or fuzzy boundary), the slippery slope (associated with concerns of, for instance, medicalisation), function creep (in which medicine moves beyond its intended purposes to serve other purposes), and individual choice (where the medical necessity of therapy contrasts with ‘lifestyle’ choices of enhancement). A discussion of these frames demonstrates how the metaphors may influence the direction of policy recommendations for problems raised by human enhancement, and why participants in the academic debate sometimes talk at cross-purposes.

The paper concludes that the therapy/enhancement distinction serves as a proxy to articulate various normative positions about what constitutes well-being and who is responsible for people’s well-being. Technological developments force us to continuously ask ourselves to what extent medicine is mainly about curing illness or also, more generally, about improving well-being. By uncovering the ways in which the therapy/enhancement argument is being framed in the literature, it becomes easier to see where authors position themselves along the spectrum of possible responses to this fundamental question.

Law and neuroscience seem strange bedfellows. But the engagement of law with neuroscientific evidence was inevitable. For one thing, the effectiveness of legal systems in regulating behavior and meting out justice often depends on weighing evidence about how and why a person behaved as he or she did. And these are things that neuroscience can sometimes illuminate. For another, lawyers are ethically bound to champion their clients’ interests. So they remain alert for new, relevant, or potentially persuasive information, such as neuroscience may at times offer, that could help to explain or contextualize behavior of their clients. In light of this, and in the wake of remarkable growth in and visibility of neuroscientific research, a distinct field of Law & Neuroscience (sometimes called “neurolaw”) has emerged in barely a decade.

Whether this engagement is ultimately more for better or for worse (there will be both) will depend in large measure on the effectiveness of transdisciplinary partnerships between neuroscientists and legal scholars. How can they best help the legal system to understand both the promise and the perils of using neuroscientific evidence in legal proceedings? And how can they help legal decision-makers draw only legally and scientifically sound inferences about the relationships between particular neuroscientific evidence and particular behaviors?

In this article, we highlight some efforts to establish and expand such partnerships. We identify some of the key reasons why neuroscience may be useful to law, providing examples along the way. In doing so, we hope to further stimulate interdisciplinary communication and collaborative research in this area.

Neuroscientific evidence is increasingly being offered in court cases. Consequently, the legal system needs neuroscientists to act as expert witnesses who can explain the limitations and interpretations of neuroscientific findings so that judges and jurors can make informed and appropriate inferences. The growing role of neuroscientists in court means that neuroscientists should be aware of important differences between the scientific and legal fields, and, especially, how scientific facts can be easily misunderstood by non-scientists,including judges and jurors.

This article describes similarities, as well as key differences, of legal and scientific cultures. And it explains six key principles about neuroscience that those in law need to know.